Spinelli, et al v. The City of New York, et al

Filing 64

OPINION: Plaintiffs submitted their letter motion on July 27, 2011, and the motion was considered filly submitted on August 17, 2011. Plaintiffs have not established any basis for an exemption from Rule 59(e); therefore, Plaintiff's motion is denied as untimely. (Signed by Judge Robert W. Sweet on 8/25/2011) (rdz) Modified on 8/30/2011 (rdz).

UNITED STATE DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ANGELA SPINELLI and OLINVILLE ARMS,
INC. ,

02 Civ. 8967

Plaintiffs,

OPINI

againstTHE CITY OF NEW YORK,
Defendant.

-x
Sweet, D.J.

Plaintiffs Angela Spinelli (IiSpinelli" or the
"Plaintiff H) and Olinville Arms, Inc.
(collectivelYt the "Plaintiffs ll )

( Ii Olinville ll )

have moved pursuant to Federal

Rule of Civil Procedure 59 to amend the judgment in order to
include an award of pre-judgment interest.

Plaintiffs submitted

their letter motion on July 27, 2011, and the motion was
considered filly submitted on August 17, 2011.

Upon the

conclusions set forth below, the motion is denied.

Pursuant to Fed. R. Civ. P. 59(e), a party seeking to
amend a judgment must file its motion within 28 days of the
entry of that judgment.

Motions to add pre judgment interest

are covered by Rule 59(e).

Goodman v. Heublein

., 682 F.2d

44, 45 (2d Cir. 1982).

Plaintiffs suggest that the inclusion of pre-judgment
interest was mandatory, in which case its omission would
constitute a clerical error under Fed. R. Civ. P. 60, and
Plaintiffs would avoid Rule 59(e)'s time restrictions.
v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39, 40 42
1979)

See Lee
(2d Cir.

(holding that where the levy of pre-judgment interest was

mandatory, its omission may be remedied pursuant to Rule 60 as a
clerical error.)

However, if an award of pre judgment interest

is subject to the discretion of the trial court, a motion for
its inclusion is governed by Rule 59(e).

See Mech. Tech.

Inc.

v. Ryder Truck Lines, Inc., 776 F.2d 1085, 1089 (2d Cir. 1985)
(holding that, where award of pre-judgment interest is
discretionary, a motion to add pre-judgment interest may not be
recast as a motion to fix a clerical error under Fed. R. Civ. P.
60 in order to avoid the Rule 59(e) time barrier).

Plaintiffs rely on
(2d Cir. 1998), and Turl

------------------------ ,

160 F.3d 858

v. NYPD, 988 F. Supp. 675 (S.D.N.Y.

1997) rev'd on other grounds at 167 F.3d 757

(2d Cir. 1999), to

claim that pre-judgment interest is mandatory in this case.

2

In

Gierlinger, the Second Circuit held that it was an abuse
discretion for the district court not to add pre-judgment
interest to awards of back pay in employment cases.
873-74.

160 F.3d at

In so holding, the Court noted that pre judgment

interest awards are "ordinarily left to the discretion of the
district court," and the mandatory inclusion of pre-judgment
interest in awards of employee back pay was an exception to the
rule brought about by a concern that holding otherwise would
incentivize and reward bad behavior by employers.
In Turl

, the plaintiff, having prevailed in a

timely moved for pre-judgment interest.

§

Id. at 874.
1983 action,

The court found that

lost profits were akin to back pay for self employed persons,
and, as such, an award of lost profits should be accompanied by
an award of pre-judgment interest.

988 F. Supp. at 682.

The

court also noted that an award of pre-judgment interest serves
the remedial purposes of

§

1983 by "'deter [ring] public

officials from violating citizens' federal rights and_
compensat[ing] victims
683

such off

ial wrongdoing.'"

Id. at

(quoting Weaver v. Brenner, 40 F.3d 527, 532 (2d Cir.

1994)).

However, the court in Turley explicitly awarded pre

judgment interest in its discretion, weighing several factors
before arriving at its holding.

Id. at 682

(noting that courts

have "broad discretion" to award or not award pre-judgment

3

interest)

(citations omitted).

Turley does not stand for the

proposition that an award of pre-judgment interest is mandatory
where a party has been awarded lost profits.

Plaintiffs have

failed to establish that the omission of pre-judgment interest
in this case was a clerical error, and they are not entitled to
reI

under Rule 60.

Judgment was entered on November 16, 2010.

Plaintiffs

submitted their letter motion seeking to amend the judgment on
July 27, 2011, well-beyond 28 days after judgment was entered.

Plaintiffs cite New Shows, S.A. de C.V. v. Don King
Prods., No. 99-9019, 99-9069, 2000 U.S. App. LEXrS 6319, at *18
19 (2d Cir. Apr. 6, 2000), for the proposition that pending
post-trial motions delay the start of the Rule 59(e) clock for
filing a motion to amend the judgment.

However, in New Shows,

judgment had not yet been entered at the time the parties filed
their post trial motions for a new trial and judgment as a
matter of law, though a jury verdict had been rendered three
months earlier.

rd. at *16-17.

The filing of these motions led

the court to realize that judgment had not yet been entered, and
the court then entered judgment.

rd. at *17.

The plaintiff's

motion to add pre-judgment interest was filed within 10 days of
4

the entry of judgment and was, therefore! timely under Rule
59(e).

rd.

Contrary to Plaintiffs! suggestion! the delay

between the jury verdict and the initiation of the Rule 59(e)
clock in New Shows was not the result of pending post trial
motions! but the delayed entry of judgment.

Here, as noted above, judgment was entered over eight
months before Plaintiffs moved to add pre-judgment interest.
Plaintiffs have not established any basis for an exemption from
Rule 59(e)

i

therefore! Plaintiffs' motion is denied as untimely.

Conclusion

For the foregoing reasons, Plaintiffs! motion to amend
the judgment is denied.
/'

New York, NY
August;.-.S--, 2011

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5

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ROBERT W. SWEET
U.S.D.J.